PPE facemasks to ensure workplace safety

COVID-19: Workplace Safety and Liability Claims

It’s imperative that businesses consider workplace safety in order to protect employees and minimise the risk of claims.

More businesses are beginning the gradual process of reopening or restoring their pre-lockdown business activities. As businesses open their doors once more, there will be an increased focus on employee and workplace safety and employer obligations. 

Regulatory bodies such as the HSE have been directed to take a flexible and pragmatic approach regarding workplace risks. However, the focus of government, unions, media and the public as a whole means there will be increased scrutiny on how companies are adapting to ensure the continued safety of their employees. In fact, we understand that the government is working on guidelines to introduce mandatory requirements for all businesses to publish the measures they have taken in relation to COVID-19.

Business owners should always cross-check information and only follow guidance given by official authorities and industry bodies. These include:

  • The World Health Organization (WHO)
  • The NHS 
  • UK Government
  • Public Health England
  •  Health & Safety Executive

What action should employers take?

As in all Health and Safety cases, the burden is on the business to demonstrate that it has put suitable measures in place to protect its workforce and others as far as reasonably practicable.

All businesses should make sure they are following all Public Health workplace safety guidelines, and exceeding them where possible. For example, businesses could consider having extra staff on-site to monitor social distancing more effectively. Employers should also purchase a stock of PPE so this is available to all staff members and visitors who require it. 

Whilst official guidance will differ from sector to sector, it is imperative that businesses are mindful that minimising some risks may increase others. For example, social distancing may inadvertently increase the chance of injury being sustained during manual handling work. Equally, lone working may reduce the supervisory capacity of management, putting less-experienced employees at risk of injury. 

A significant part of assessing risk is to look at the individual circumstances of the employee to work at the relevant location. Consider the below questions:

  • Can your employee carry out his or her work at home?
  • Should your employee be shielded due to underlying health conditions?
  • Are you aware of any psychological / mental health reason that may impact on your employee working at a specific location?
  • How will your employee get to work?
  • Is your employee or any family member suffering with COVID 19 symptoms?

These questions will also need to be considered in respect of contractors visiting your premises. You may also wish to ask your business partners and suppliers to provide their own information as to how they are seeking to protect their employees.

The impact of stress

Whether working remotely or being brought back onto the business premises, changes in routine can be a cause of anxiety for some, especially when the change to an employee’s habits may have been forced on them at relatively short notice. Consideration of the potential risks in this situation will help to reduce the likelihood of claims being received.

Consider the below actions as potential means for monitoring, identifying and minimising stress within your workforce:

  1. Ensure a dialogue is kept with staff, celebrating successes, providing background detail to business decisions and encouraging participation
  2. Make sure staff know what measures you’re putting into place to ensure workplace safety. You should also make their obligations clear (such as following guidelines, wearing PPC where necessary etc)
  3. Listen to your team. There may be some fear and anxiety surrounding the situation, so make sure you maintain open lines of communication and consider the feelings of each individual 
  4. Promote flexibility where required, whilst also advocating a sensible routine that separates an employee’s work and home life 
  5. Provide support for staff via the clearly communicated supervision of workloads, objectives and any training needs they may have for the role, whether at home or in the workplace. Encourage employees to provide feedback on their workloads and responsibilities
  6. Encourage staff to support each other, perhaps via a buddy system where appropriate. If an employee is experiencing problems, discuss a wellness action plan with them
  7. Promote daily exercise as a means of staying healthy and ‘shaking off’ the day!

Potential liability claims

Given the litigious culture we live in and the economic hardships being experienced by many across the country, it’s likely that claims will be made against some employers as a result of the COVID-19 pandemic. Here are just some of the potential claims we envisage: 

  • Infection. COVID-19 is not, at time of writing, a listed Occupational Disease. An Occupational Disease is one which seems to have a link with occupational exposure, such as Carpal Tunnel Syndrome, Hand Arm Vibration Syndrome or Occupational Dermatitis. This means that a claimant attempting to claim for an infection of coronavirus would need to provide evidence that they had contracted the disease during the course of their employment. However, there is the likelihood that employers will be required to demonstrate that they have carefully considered the risks to their workforce and taken reasonable steps to ensure the safety of their employees.
  • Psychological and physical injury. Given that certain employees may have been furloughed, it could be the case that those who remain working are left with a significant increase in their own workload, leading to stress or physical injury. Employers will likely be asked to exhibit the methods by which they have sought to account for these changes in workload and the increase in mental or bodily strain that these might create.
  • Working from home. Most homes have not been designed or risk-assessed for the purposes of office-based work and therefore an employer will need to ensure that they have considered the potential issues that may arise whilst their employees are working in their own houses. These risks could be musculoskeletal, if staff use unsuitable chairs and desks for long periods of sitting. The risk could also be stress-related, as employees experience frustration with a lack of support while conducting their work. 
  • Vicarious liability. Employers remain vicariously liable for the potential negligence of their own employees. As such the current COVID-19 pandemic could mean that claims are made against businesses because of the sometimes remote, unsupervised actions of their workforce. For example, if an employee with COVID-19 continued to interact with customers then the company could be deemed vicariously liable for the spread of the virus to others outside the business. Equally, employees on a skeleton staff may end up operating machinery on which they have not had full training, putting themselves and others at risk.

If a claim does occur, employers will be required to demonstrate that the control measures they have devised to reduce the risks of COVID-19 infection are being effectively implemented. Historically employers have relied heavily upon managers and line managers to observe that processes are being followed and acceptable working methods used. 

However, social distancing might make that type of supervision more problematic, whilst employees may be reluctant to report COVID-19 symptoms for fear of being prevented from working. A multi-disciplinary approach between HR and Management will be required to effectively manage the situation as it evolves.

A checklist of considerations for your workplace

The following advice should provide plenty of food for thought for businesses when it comes to workplace safety. Ensure the below points are taken into consideration when risk assessing and planning your reopening… 

  • Think about practical steps you can take to minimise spread of infection, such as keeping doors open to reduce touch points, promoting a clear desk policy, ensuring just one person uses the lift at a time, introducing a one-way system etc 
  • Devise a Social Distancing Plan and ensure this is communicated to all employees and available on a shared system for members of staff to access at all times 
  • Ensure adequate health surveillance and the identification of vulnerable individuals
  • Consider how you will manage visitors on-site. This includes what health and safety checks they will be subject to, what PPE they will be required to wear, how social distancing and hygiene guidance will be provided to them and what other practices you can introduce to minimise the risk of infection spread 
  • Provision of suitable PPE where required
  • Assessment and management of workloads
  • Consideration for the health and safety of those working from home
  • Ensure technological systems are in place and remain adequate in order to carry out essential meetings remotely and avoid visitors on-site or non-essential travel for staff 
  • Shut down communal areas such as break-out rooms, or ensure signage and guidance is put in place to ensure safety 
  • Follow and keep up to date with government and industry advice
  • Consider a phased return action plan, including how you will decide who returns and when. Keep workers informed and listen to their concerns, putting anxieties to rest where possible 
  • Make sure adequate and effective warnings and signage is placed around the building or site (these can be downloaded for free from Public Health England)
  • Ensure employees are aware of good workplace hygiene routines and cough/sneeze etiquette 
  • Frequency and depth of cleaning should be reviewed, ensuring all hand contact surfaces (door handles, switches etc) are disinfected regularly 
  • Make sure a Fire Marshal and First Aider are always on-site and included in the first wave of employees returning

Instilling a sense of responsibility within your workforce

Whilst it is an employers’ duty of care to ensure a safe working environment, it is ultimately everyone’s responsibility to make sure guidelines and workplace safety rules are followed. Employees must follow the guidance provided by their employer, such as obeying social distancing and self-isolating if they exhibit symptoms. 

In order for employees to follow rules and guidance, they must be made aware of it in the first place. Businesses must develop workplace guidelines which include what hygiene routines are expected (such as washing hands regularly for at least 20 seconds with warm water and soap, avoiding touching other people’s belongings or equipment, disinfecting surfaces after use etc). Transparency and clarity is key, and employers must be able to prove they have done their due diligence in communicating safety expectations efficiently. 

If needed, carry out training in fitting, wearing and using PPE. This should also include information on the safe removal, sanitation and disposal of the equipment. 

Businesses must put the onus on their workforce to be sensible and put the safety of the team first and foremost. Encourage a sense of teamwork within the workforce, ensuring colleagues understand the importance of following the rules. They must not put other members of staff at risk. 

By now, most of us will be aware of the symptoms of COVID-19, but this doesn’t mean businesses should be complacent. Communicate with employees via email or even on-site signage to make it crystal clear what the symptoms are and when to self-isolate.

Documenting evidence

In the event that a claim is received, it will be invaluable to be able to produce written evidence of risk assessments, Health and Safety discussions, method statements and any other safeguards put in place to ensure the safety of your workforce. Quite rightly, it will be harder to allege negligence against a company if it has conducted appropriate balancing exercises and sought to achieve what is reasonably practicable, even if hindsight suggests otherwise.

Specialist, independent health and safety advice can assist you in reinforcing your usual staff management procedures to ensure that they are suitable for this new working environment. Don’t forget that our Risk Management and Health and Safety specialists are always on-hand to help if you require further assistance.

In conclusion...

Businesses should promote simple, focussed but comprehensive guidance to their employees, customers and contractors to achieve a safe and healthy working environment. This will not only help keep everyone safe, it will allow businesses to most effectively defend a claim should an incident or illness occur. 

For more information, take a look at our coronavirus risk assessment or contact our dedicated risk management team for advice. 

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